It is scarcely possible to read a newspaper for any one week period these days without seeing an article about an excavator who has either struck an underground gas or water main, or severed an underground telephone line, or both. The proliferation of construction, particularly in the Metropolitan Atlanta area, has led to a significant increase in the number of these incidents.

In light of the many damage incidents, most lawyers would probably be surprised to learn that there is a specific statute in the Georgia Code which not only penalizes the behavior of these rogue excavators, but makes them strictly liable for damages resulting from their actions. The Georgia Utility Facility Protection Act ("GUFPA"), O.C.G.A. §§ 25-9-1, et. seq. places strict requirements on persons engaged in excavation or blasting, and is designed to be the teeth behind the phrase "call before you dig." In spite of this useful tool against excavators, it appears that utility companies have not often sought redress in the courts for the many incidents of damage we read about. There are no reported cases citing any of the many provision of the GUFPA. One is left to wonder why enterprising lawyers have not leapt upon this provision of state law.

2. THE GEORGIA UTILITY FACILITY PROTECTION ACT

1. Purpose and Operative Provisions

The GUFPA was first enacted in 1969, and was amended in 1986, 1990, and 2000.1 GUFPA's purpose is "to protect the public from physical harm, prevent injury to persons and property, and prevent interruptions of utility service resulting from damage to utility facilities caused by blasting or excavating operations."2 GUFPA accomplishes this goal through "providing a method whereby the location of utility facilities will be made known to persons planning to engage in blasting or excavating operations so that such persons may observe proper precautions with respect to such utility facilities."3

GUFPA created, and requires all utility facility owners or operators ("Utilities") to participate as members in and cooperate with, the Utilities Protection Center ("UPC").4 The UPC is funded by its members, and GUFPA forbids the creation of a "duplicative" UPC.5 The UPC by law must maintain a list of the contact information for individuals and departments at all of its member utilities from or through which information respecting the location of facilities of participating Utilities may be obtained during business hours on business days.6

2. Duties Placed upon Excavators

GUFPA places numerous duties upon excavators and those engaged in blasting activities. Failure to follow these duties results in strict liability for some damages.

1. Notice Provisions

Excavators are required to give 48 hours' notice7 to the Utilities Protection Center prior to beginning blasting or excavating with mechanized excavating equipment.8 The notices contemplated by the statute are called "locate requests."9 Locate Requests must

(1) describe the land upon which the contractor wishes to blast or excavate, and must do so "with sufficient particularity," as defined by policies developed by the UPC to enable the Utilities to determine the precise piece of land involved;

(2) state the name, address, and telephone number of the person who will engage in the blasting or excavating;

(3) describe the type of blasting or excavating to be engaged in by the person; and

(4) designate the date upon which the blasting or excavating will commence.10

GUFPA also provides for a mechanism to identify the tract of land to be excavated by the placement of white paint, white stakes, or white flags (if practical) or to schedule an onsite meeting between the excavator and the Utility or its agent to locate the facilities.11

No one - not even the Utilities - is permitted to request the marking of a site through the UPC unless excavating is actually scheduled to commence.12 The same rule applies to repeated requests for remarking, all of which must coincide with actual intent to excavate the parcel of property.13 Any person who requests the marking of a site without the intent to actually excavate, or any person who requests remarking without a requirement for continued excavation shall be "strictly liable" to the Utility for three times the cost of marking the utility facility not to exceed $1,000.00.14

The contractor performing the blasting or excavating is only permitted to do so for 21 days following the date set as the beginning date for excavation in the original notice.15 If the excavating company wishes to work beyond the 21-day period, an additional notice must be given, and the entire process must be begun again.16 GUFPA also contains a provision requiring notice if the excavator wishes later to expand his activities to include blasting, and requires 24 hour notice for such expansion of activity.17

2. Excavation by Agent

Although GUFPA places strict requirements regarding giving notice of planned excavation, the person planning the blasting or excavating may contact the UPC and may then delegate to other contractors the actual duty of performing the blasting or excavation. However, the person planning the blasting or excavating - that is, the one who originally contacted the UPC - remains responsible for insuring that the markings placed upon the property remain in place and reasonably visible until the blasting or excavating is completed.18 Additionally, when the person making the Locate Request delegates the blasting or excavating activities, the blasting or excavating must be

(1) performed on the tract or parcel of land identified in the Locate Request;
(2) performed by the person authorized by or having a contractual relationship with the person planning the blasting or excavating;
(3) the type of blasting or excavating described in the original Locate Request; and
(4) carried out in accordance with all other requirements of GUFPA.

3. Exercise of Reasonable Care and Emergency Situations

Persons blasting or excavating with mechanized equipment are strictly forbidden from striking, damaging, injuring, or loosening any underground facility which has been staked or marked.19 GUFPA establishes a "Tolerance Zone" which is defined as the width of the underground utility facility plus 24" on either side.20 When the excavating or blasting takes place within the Tolerance Zone, the excavator must exercise "reasonable care" necessary to protect the underground facility. GUFPA defines these reasonable measures to include: hand digging, pot holing, soft digging, vacuum excavation methods, pneumatic hand tools, and other methods approved by the Utilities or other generally accepted methods.21 In instances of excavations taking place parallel to an existing underground facility, the excavator should expose the existing facility at intervals necessary to avoid damage.22

Any time an excavator or blaster strikes, damages, injures, or loosens any underground utility facility, that person must immediately cease all such activities and notify the UPC regardless whether the lines have been marked or not.23 The blaster or excavator must also contact the Utility.24 The Utility, upon the receipt of any notice of a strike or other damage, is required to send personnel to the location as soon as possible to repair the damage. All work on the excavation must cease until the repairs have been completed. There is an exception to the "cease work" provision of O.C.G.A. § 25-9-8(c) relating to the performance of "emergency excavations" or "excavations in extraordinary circumstances."25 This provision appears to relate to excavations in the interest of saving human life. Persons engaging in emergency excavation must minimize damage to any Utility, and shall give notice of the emergency excavation as soon as practical to the UPC.

The list of duties placed upon excavators by GUFPA also creates a "safe harbor" for them so long as they comply, and so long as there is not "visible and obvious evidence" of the presence of a mismarked utility.26 If an excavator follows all of the notice requirements of the GUFPA, and the Utility fails to mark the facilities properly, the excavator may have a cause of action against the Utility for violation of the Utility's duties as outlined herein.27 However, GUFPA is chiefly designed to prevent inaction by excavators, an intent proven by the penalty provisions, which place the heavier enumerated penalties upon excavators, and GUFPA does not use the words "strict liability" to describe damages available against Utilities in favor of excavators.

GUFPA also provides safe harbor perfect defenses to the excavator (1) if the excavator gives notices, as required by GUFPA, the UPC provides the notice to the Utility, and the Utility subsequently fails to comply with the marking requirements of O.C.G.A. § 25-9-7, or (2) if the Utility has failed to become a member of the UPC as required by O.C.G.A. § 25-9-5.28

3. Duties Placed Upon Utilities

GUFPA also places requirements upon the Utilities, and balances duties between them and excavators to expedite beginning and completing construction projects.

1. Locating Underground Facilities

After the excavator contacts the UPC with a Locate Request that it shall commence blasting or excavating, the burden to act is shifted to the Utility. The Utility is required within 48 hours (beginning the next business day after receipt of the Locate Request) to:

(1) determine whether or not the utility facilities are located on the property; and
(2) if so, to stake or otherwise mark the surface of the property to show the location of the facilities.29

In designating the location of the facilities, the Utility is required to stake or mark them in accordance with color coding set forth by the American Public Works Association ("APWA").30 This explains the different colored marking frequently seen on construction sites.

The Utilities, after determining whether facilities are located on the property in question and if present, marking them, shall provide that information to the UPC in accordance with procedures promulgated by the UPC.31 The General Assembly has suggested the use of a "ticket information exchange system" for the UPC to keep track of this information.32 GUFPA requires that the Utility give the UPC the notice of whether there are facilities on the Property no later than midnight on the second business day following receipt of the initial notice given to the UPC.33

If the Utility is unable to locate the facilities for extraordinary circumstances, the Utility shall notify the UPC, and also provide an estimated completion date.34 If the Utility fails to comply with the time provision of 48 hours for marking facilities, or if the Utility fails to comply with the requirement that notice of completion be given to the UPC, the UPC is required to issue a second request to the Utility. Upon receipt of the second notice, the Utility must respond by noon of the same business day that either no facilities are present on the property or by designating the location of those facilities.35

Should the Utility fail to comply with either of these requirements by noon of the business day of receipt of the second notice, then the blaster or excavator originally giving notice of intent to dig may proceed to do so as long as there is no visible or obvious evidence of the presence of unmarked facilities on the property.36 In the absence of such evidence, the blaster or excavator is not subject to liability for any damage to facilities which the Utility fails to mark, so long as the blaster or excavator otherwise complies with the duties placed upon him under GUFPA.

2. Electronic Locating Technology

GUFPA also places certain technological requirements upon Utilities. For example, all facilities installed by Utilities on or after January 1, 2001 must have attached to them an electronic locating device by which it may be located.37 The Utilities are also required to either maintain a database concerning the location and the other characteristics of abandoned facilities, maintain them in a locatable manner, or remove those abandoned facilities.38 The Utilities must provide information on abandoned facilities when possible in response to locate requests, and should attempt to locate them when they are known or provide information to the excavator regarding those facilities.39 When excavators locate or expose abandoned utilities, they must treat those facilities in all respects as live facilities.40

3. Accuracy of Locating

GUFPA not only requires the Utilities to locate underground facilities, but requires that they do so accurately. The Utilities must provide the location of underground facilities accurately "to within 24" measured horizontally from the outer edge of either side of such facilities."41 If damage occurs to any facility as a result of inaccurate information as to the location provided by the Utility, the excavator is relieved of any liability so long as the excavator has otherwise complied with the terms of GUFPA, and there is no visible or obvious evidence to the excavator of the presence of a mismarked facility which would have caused the excavator to stop work.42

In fact, the Utility may be liable to the excavator as a result of losses from the providing of inaccurate information. If the excavator can provide "documented evidence" that it has incurred losses or expenses due to the inaccurate information, lack of information, or unreasonable delays in supplying information, the Utility shall be liable for those losses and expenses.43 This damage provision also appears to be quite broad, but lacks the strict liability language of the provision placing liability on the excavators.44 As with the provision governing damages available to Utilities described below, this provision places no burden on the excavator to mitigate his damages in any way.

4. Liability of Violating Excavators

1. Strict Liability for Costs to Repair Utility Facilities and Damage to Persons and Property

If an excavator initiates a project without first calling the UPC to request a Locate of facilities with proper notice, and the excavator then damages an underground facility, that excavator "shall be strictly liable for": (1) any costs incurred by the Utility in repairing or replacing the damaged facility; and (2) any injury or damage to persons or property resulting from damage to the underground facility.45

This measure of damages is quite broad. The violating excavator is liable for any "cost incurred" by the owner or operator, and does not appear to be subject to any "reasonableness" limitation. In other words, it appears that whatever the Utility claims to have been required to do to repair the facility is the actual measure of damages awarded to the Utility. In short, the Utility only needs to provide evidence of its actual "costs" without regard to the reasonableness of those costs.46

The violating excavator also must indemnify the Utility from any injuries or damages to persons or property resulting from the damage to the underground facility.47 Again, the language in this provision is quite broad, and provides neither a limitation on the damages nor a requirement that the Utility mitigate its damages in any way.

2. Indemnity for Service Interruptions

The civil damages do not end there. An excavator must also indemnify the Utility against all claims for personal injury, property damage, or service interruptions resulting from the damage to the facilities.48 However, the General Assembly was careful not to waive the availability of sovereign immunity, as the obligation to indemnify does not extend to counties, cities, towns, or state agencies "to the extent permitted by law."49

3. Professional Penalties

Professional penalties are also available. The State Examining Board is authorized to suspend or revoke any professional or occupational license, certificate, or registration issued to a person who violates the "call first" provisions of O.C.G.A. § 25-9-6, or the "reasonable care" provisions of O.C.G.A § 25-9-8.50

5. Public Service Commission Jurisdiction

The Public Service Commission shall enforce the provisions of GUFPA and may promulgate any rules and regulations necessary to implement and enforce it.51 However, the jurisdiction of the Public Service Commission "shall not prevent nor preempt the right of any party to obtain civil damages for personal injury or property damage in private causes of action."52

The Public Service Commission may enter judgments against persons or companies who violate GUFPA upon 30 days' notice at a hearing.53 The civil penalties awarded by the Public Service Commission for each violation shall not exceed $10,000.00 upon proof that the violator did not exercise "reasonable care."54 All awards recovered by the Public Service Commission are deposited in the general funds of the state treasury.55 The Public Service Commission is not permitted to impose civil penalties on any county, city, town, or state agency, in keeping with other provisions which preserve sovereign immunity.56 However, the Public Service Commission shall inform those governmental units of alleged violations and suggest corrective action if the governmental units so request.57 The statute provides a specific proscription against fines being imposed upon those "engaged in farming activities on land such person owns or leases."58

3. CONCLUSION

GUFPA provides a powerful, and as yet largely unused, tool for the protection of underground utility facilities from damage by excavators. In light of the proliferation of the strikes to gas lines and telephone lines underground, it remains to be seen whether the utilities will pursue damages from the violating excavators. Many of them have insurance coverage which will defend against such claims, and that may only increase the costs of recovering those claims. If litigation does occur based on some of the larger incidents of damage which occurred during the year 2000, perhaps the Georgia Court of Appeals and Georgia Supreme Court will have occasion to interpret this statute and the penalties it provides.

GUFPA defines "Utility Facility" as "an underground or submerged conductor, pipe, or structure used in providing electric or communication service, or an underground or submerged pipe used in carrying, providing, or gathering gas, oil, or oil product, sewage, waste water, storm drainage, water, or other liquids, and appurtenances thereto." O.C.G.A. § 25-9-3(22). A facility owner is anyone "who owns, operates, or controls the operation of a utility facility as defined in this Code Section for the purpose of commercial enterprise," O.C.G.A. § 25-9-3(14), and this article will refer to them as "Utilities."

O.C.G.A. § 25-9-5(A).

O.C.G.A. § 25-9-5(B).

O.C.G.A. § 25-9-6(A). The 48- hour period appears actually to be 60 hours or longer because it is "beginning the next business day after such notice is provided, excluded hours during days other than business days." Id.